Judge Thomas D. Long, Case Number: 20STCV22980, Date: 2023-08-22 Tentative Ruling

Plaintiff Seung Hyun Lee served Defendant Chul Hyun Kim on August 23, 2020. The Court entered default on December 3, 2020, and default judgment on May 13, 2021.

On May 3, 2022, the Court granted in part Defendant’s motion to vacate default and default judgment. The Court vacated the May 13, 2021 default judgment. The Court denied the request to vacate the December 3, 2020 entry of default, finding that the motion was untimely under Code of Civil Procedure section 473 and that Defendant did not show extrinsic fraud, extrinsic mistake, a meritorious defense, or diligence in seeking to set aside the default. The Court ordered the parties to meet and confer about resolving this case, and it set a status conference.

Defendant appeared telephonically at the August 25, 2022 Status Conference Re: Resolution of Case, but Plaintiff did not appear. Plaintiff appeared at the October 18, 2022 Case Management Conference, but Defendant did not appear.

Defendant filed another motion to vacate entry of default and default judgment on June 20, 2023.

The Court may relieve a party from a judgment resulting from mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) The application for relief must be made within a reasonable time, not to exceed six months, after the judgment. (Ibid.) “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citation.]” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

This motion was filed over two and a half years after entry of default and over seven months after entry of default judgment. Therefore, the entry of default and default judgment may not be vacated under Code of Civil Procedure section 473.

“‘Where, as in the present case, a motion to vacate a default judgment is made more than six months after the default was entered, the motion is not directed to the court’s statutory power to grant relief for mistake or excusable neglect under Code of Civil Procedure section 473, but rather is directed to the court’s inherent equity power to grant relief from a default or default judgment procured by extrinsic fraud or mistake.’ [Citations.]” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314.) Extrinsic fraud occurs when a defendant is deprived of his opportunity to present his claim or defense to the court, or when he was kept ignorant or fraudulently prevented from fully participating in the proceeding. (Id. at p. 315.) This does not include circumstances when the party “‘has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary, but has unreasonably neglected to do so.’” (Ibid.) To set aside a judgment or order based on extrinsic mistake, the defaulted party must (1) show that it has a meritorious case, (2) articulate a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrate that it was diligent in seeking to set aside the default once it had been discovered. (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 738.)

This motion and declaration are very similar to Defendant’s November 3, 2021 motion and declaration. Defendant again provides no evidence of extrinsic fraud, and he does not dispute that he was given notice of the action. Defendant also does not show extrinsic mistake. Defendant’s motion does not set forth his meritorious defense or an explanation of his diligence in seeking to set aside the default when it was discovered. Although Defendant may have a satisfactory excuse for not presenting a defense to the original action due to Roc Solid Legal not filing Defendant’s response in October 2020, Defendant does not further explain when he contacted them or any efforts to confirm his filing.

Accordingly, the motion to vacate entry of default and default judgment is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court